The K-P Advocate General Abdul Latif Yousafzai said National Accountability Ordinance (NAO) was not applicable in the province after the Ehtesab Commission Act 2015 was passed. He said this as he appeared before the Peshawar High Court on Thursday and assisted the bench.
Arguing before a five-judge bench headed by Chief Justice Mazhar Alam Miankhel, Yousafzai said after the 18th Constitutional Amendment, the concurrent legislative list, which gave powers to the federal and provincial governments to legislate, was completely abolished. The power to legislate devolved to the provinces, he added.
He said a bill has been moved in the Senate that demands maximum powers with the province and limited applicability of NAO to federal areas.
“After its abolishment, some provisions of the concurrent list were adjusted on the federal list, including criminal law, criminal procedure and evidence, in general,” he said. However, at the same time, provinces were empowered to legislate in some specific areas of the aforementioned provisions, he said.
He contended that ECA 2015 and NAO were special laws as they dealt with a specific subject – corruption. And since the provinces have powers to legislate in specific areas such as corruption after the 18th Amendment was passed, federal laws are not applicable in provincial matters.
When asked on what basis the Ehtesab courts were formed, the AG responded if a provincial assembly passed a law that needs courts, the provincial government would form the courts. In this case, no two laws that are mutually exclusive are overlapping, he said.
While explaining the establishment of EC and the issuance of its notification, the AG told the bench it was nowhere mentioned in ECA 2015 that a notification needs to be issued to establish the commission.
However, the chief justice enquired why was the notification issued if it was not mentioned in the act. He also asked the AG to assist in the legal status of the notification. Justice Nisar Hussain raised the same question, asking what need arose to issue the notification and why was it not published in the official gazette. The AG replied if its issuance was needed and was issued in later stages then it would have serious consequences. But he added, if not needed and issued later then the delayed issuance would not affect the law.
He defended the appointment of commissioners and director general. The AG said, “A meeting of the commissioners was held to appoint the DG and prosecutor general (PG) on October 15, 2014.” The chief justice then asked who the appointing authority was, to which the AG replied that EC was the authority which appointed the DG and PG.
Representing the provincial government, Additional Advocate General Umer Farooq Adam said the extraordinary NAO failed to do away with corruption. Besides, he said, the KPECA was by no means inconsistent with NAO.
“Anti-corruption laws already existed when NAO was passed. However, no one questioned the NAO then, even though similar laws were already in place,” he said.
The hearing was adjourned till Friday (today).
Published in The Express Tribune, November 27th, 2015.
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